Lascaris v. B’nai Brith Canada: SCC Leave to Appeal Denied

Legislation against strategic lawsuits against public participation [“anti-SLAPP legislation”] is not a blanket legal apparatus. Parties cannot get claims against them dismissed simply because their expressions are in relation to matters of public interest. Lascaris v B’nai Brith Canada, 2019 ONCA 163 [Lascaris] is a case that explores this concept further.

Factual Overview

The appellant, Mr. Dimitri Lascaris, is a lawyer, journalist, and human rights activist (Lascaris, para 3). Mr. Lascaris publicly advocated against governmental actions contrary to human rights, including particular actions taken by the Israeli state that have infringed upon the rights of Palestinians (Lascaris, para 4). In March 2016, Mr. Lascaris became the Justice Critic for Elizabeth May–the Green Party leader’s shadow cabinet. In the following two months, Mr. Lascaris visited Israel to interview Eritrean refugees (Lascaris, para 7).

During his visit, Mr. Lascaris met with Mr. Muhammed Alayan, a lawyer and author who wanted to discuss a human rights matter regarding his family (Lascaris, para 7). Mr. Alayan’s son, Bahaa, was a political activist in East Jerusalem known for forming the “largest ever human reading chain around the walls of Jerusalem’s Old City” as a peaceful demonstration for Palestinian rights (Lascaris, para 7). Mr. Alayan was notified that after the peaceful demonstration, his son was interrogated and killed by Israeli authorities who accused him of engaging in terrorist activities against Israeli settlers (Lascaris, para 7).

Mr. Alayan stated that the Israeli authorities refused to return his son’s deceased body to the family for an examination and proper burial despite multiple requests (Lascaris, para 7). The Israeli authorities offered to return Bahaa’s body on the condition that no independent examinations were to be conducted (Lascaris, para 7). Upon Mr. Alayan’s refusal of that offer, the Israeli authorities demolished Mr. Alayan’s family home resulting in the family becoming homeless and having to reside in a tent (Lascaris, para 7).

Following the meeting with Mr. Alayan, Mr. Lascaris conducted research on what was discussed, posting two comments on Facebook to that effect. The first comment stated that Mr. Alayan’s son was “killed extrajudicially,” while criticizing the “use of collective punishment” against the Alayan family, stating “whatever Bahaa Alayan may or may not have done, the Israeli government’s treatment of Muhammad Alayan [the father] is an outrage” (Lascaris, para 10). The second comment included a picture of Mr. Lascaris with Mr. Alayan, restating the sentiments of the preceding post while adding that the son’s body has not been returned to the family (Lascaris, para 11).

Mr. Lascaris returned to Canada in May 2016. He backed a policy resolution calling on the Green Party to support “the use of peaceful boycott, divestment and sanctions [“BDS”] to bring an end to Israel’s occupation of Palestinian territories” (Lascaris, para 12). 

The respondent, B’nai Brith Canada (“B’nai Brith”), is an “independent, charitable organization” involved in advocacy initiatives behalf of the Canadian Jewish community  (Lascaris, para 5). B’nai Brith acts as an intervenor in courts, and publishes “articles, press releases and studies” on topics they feel are relevant to the Canadian public interest (Lascaris, para 5).

B’nai Brith campaigned against Mr. Lascaris and the Green Party, stating that the BDS Resolution they put forward  was anti-Semitic (Lascaris, para 13). Between June 2016 and August 2016, B’nai Brith posted several publications against Mr. Lascaris including an article and a tweet, stating that Mr. Lascaris advocated on behalf of terrorists and called to remove Mr. Lascaris from his position on the  Green Party’s shadow cabinet  (Lascaris, paras 14-19).

Claims

Mr. Lascaris served notice upon B’nai Brith regarding the “defamatory publications under section 5(1) of the Libel and Slander Act,  RSO 1990, c L.12 [“Libel and Slander Act”] (Lascaris, para 20). However, B’nai Brith failed to respond to this notice, and did not alter, edit, or remove any of the publications  (Lascaris, para 20). On July 4, 2017, Mr. Lascaris  served an amended statement of claim, and on August 24, 2017, B’nai Brith served a statement of defence pleading “justification, qualified privilege, fair comment, and notice-based defences” under the Libel and Slander Act (Lascaris, para 20).

B’nai Brith filed a motion to dismiss Mr. Lascaris’ libel action pursuant to section 137.1 of the Courts of Justice Act, RSO 1990, c C.43 [CJA] on the basis that it is a strategic lawsuit against public participation [“SLAPP litigation”] (Lascaris v B’nai Brith Canada, 2018 ONSC 3068) [Superior Court Decision].

 Mr. Lascaris stated that the publications made by B’nai Brith have damaged his reputation (Superior Court Decision, para 22). Further, he stated that the defendant “acted in bad faith” by purposefully and inaccurately illustrating him as a “supporter of terrorists” (Superior Court Decision, para 22). Mr. Lascaris claimed damages of $200 000 pursuant to the Libel and Slander Act, in addition to punitive or exemplary damages of $20 000 from the article and tweet published by B’nai Brith (Superior Court Decision, para 1).

Legislative Framework

Section 137.1 of the CJA provides:

(1) The purposes of this section and sections 137.2 to 137.5 are,

(a)   to encourage individuals to express themselves on matters of public interest;

(b)   to promote broad participation in debates on matters of public interest;

(c)   to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d)   to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a)   there are grounds to believe that,

(i)    the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding, and

(b)   the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

Superior Court Decision

The motion judge granted B’nai Brith’s motion to dismiss Mr. Lascaris’ libel action under the anti-SLAPP provision in section 137.1 of the CJA (Superior Court Decision, para 67).  The motion judge found that Mr. Lascaris failed to demonstrate that B’nai Brith had no valid defence against his libel claim with respect to the defense of fair comment, pursuant to section 137.1(4)(a)(ii) of the CJA (Superior Court Decision, para 67). The motion judge determined the B’nai Brith satisfied all four elements of the defense of fair comment. These elements include that:

(1)   the comment is on a matter of public interest;

(2)   the comment is based on fact;

(3)   the comment, though it can include inferences of fact, is recognizable as comment;

(4)   any person could honestly express that opinion on the proved facts (Superior Court Decision, para 52).

Court of Appeal Decision

The appellate judge determined that the motion judge erred in her analysis of section 137(4)(a)(ii) of the CJA, indicating that Mr. Lascaris “met his burden” under section 137.1(4)(a)(ii) to determine that a “reasonable trier” could conclude that none of the defences would succeed (Lascaris, para 37). With respect to the defence of fair comment, the appellate judge indicated that the comments regarding Mr. Lascaris supporting terrorists can be viewed as being based on opinion and not fact (Lascaris, para 34). The appellate judge further specified that even if it is true Mr. Lascaris supported Mr. Alayan, that does not make it true that he supported his son’s alleged actions (Lascaris, para 34). Furthermore, the appellate judge determined that the defence of fair comment is unavailable because B’nai Brith repeatedly published comments that Mr. Lascaris supported terrorism despite Mr. Lascaris expressly repudiating this claim (Lascaris, para 34).

With respect to the balancing requirement of section 137.1(4)(b) of the CJA, the appellate judge determined that the balance “clearly favours” Mr. Lascaris (Lascaris, para 40). The appellate judge recognized how given the current political climate, accusing a person of supporting terrorists is of the utmost serious and damaging allegation (Lascaris, para 40). Furthermore, the appellate judge acknowledged the additional harm the comments pose to Mr. Lascaris — as a lawyer, Mr. Lascaris’ reputation is “central to his ability” to continue in his profession (Lascaris, para 42).

The Appellate judge indicated that differing views can and ought to be undertaken with regard to policies and principles; however, there needs to be “responsible discourse” whereby views are exchanged and debated “without the need for personal attacks” (Lascaris, para 44). The Appellate judge suggested that B’nai Brith could have expressed their views on the issues regarding the BDS Resolution and the broader BDS debate without publishing defamatory comments against Mr. Lascaris. (Lascaris, para 44).

The Appellate judge thus allowed the appeal and entitled Mr. Lascaris to his costs of the appeal of $15 000 (Lascaris, para 45).

Supreme Court of Canada (“SCC”)

B’nai Brith put forth an application for leave to appeal from the Court of Appeal’s judgement. However, the SCC dismissed the application. As a result, Mr. Lascaris’ libel action can now proceed to trial.

Significance of SCC Dismissing Leave Application

While the SCC did not provide candid reasons for dismissing B’nai Brith’s application for leave, the significance of this dismissal is important, particularly to the legal community and other professionals at large.

Lawyers are taught to be neutral and unbiased in their thinking and reasoning processes, from the inception of their law school careers and thereafter. Impartiality is seen as a distinguishing characteristic in the legal field, while those critiquing and criticizing the dominant perspectives of law and politics are often met with resistance. It should not be normalized to stay neutral in situations of injustice. Lawyers who have the courage to engage with human rights issues and political debates within a public forum should be recognized, not faced with the fear of defamation and reputational damage. Anti-SLAPP legislation was not intended for this purpose and should not be used to dismiss these important claims from moving forward–the interest of the public depends on it.